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2023-TIOL-91-CESTAT-AHM
Raj Engineers Vs CCE & ST
ST - Issue to be decided is, whether appellant is eligible for exemption Notfn 12/03-ST which provides abatement of value to the extent of material cost and whether demand on service tax is otherwise sustainable on submission of appellant that they are eligible for composite contract scheme alternatively abatement Notfn 15/2004-ST and 01/2006-ST - From the invoices, it is found that appellant have declared service charges and cost of material separately - Since the appellant have declared material cost and same was accepted by service recipient, no doubt can be raised that material cost declared in invoice is incorrect unless it is proved contrary by department - Appellant have provided composite contract to service recipient which includes service and material - Therefore, appellant is entitled for Notfn 12/03-ST - Appellant have also argued that since they have provided composite contract i.e. with material and they have discharged VAT, their service is classifiable under works contract service - In such case, firstly service tax is not payable till 01.06.2007 when the works contract service became taxable - Consequently, for the subsequent period also if service tax is calculated at the rate applicable to composite works contract, no demand would arise as appellant have been paying service tax on higher value despite the deduction on account of material cost, for this reason also demand is not sustainable - Appellant also alternatively submitted that since they have provided services along with material, which is not disputed by either side, they are eligible for abatement under Notfn 15/2004-ST and 01/2006-ST - Therefore, by identifying cost of material, appellant is eligible for deduction of 67% from gross value of service and they are liable to pay service tax on 33% of gross value - As against the abatement of 67% available under Notfn 15/04-ST and 01/06-ST, appellant have taken abatement ranging from 30% to 48% - Thus, despite availability of abatement as per said notification, appellant have paid service tax on much higher value, for this reason also demand is absolutely unsustainable - Impugned order is not sustainable, same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-90-CESTAT-MUM
Vinesh Naresh Chheda Vs CC
Cus - Issue involved is, whether a penalty under section 114A of Customs Act, 1962 can be imposed on appellant, who is not the importer - No duty or interest has been demanded from appellant nor any duty or interest has been determined against him - It is the importer who is liable to pay duty not even its director or proprietor as the case may be and this view finds support from decision of Tribunal in the matter of Nippon Audiotronix Ltd. - No written agreement between importer and appellant has been placed on record as there was no such agreement as admitted by importer i.e. Mr. Ganesh Shankar Nirulkar, proprietor of M/s. Sun Impex - Appellant is not the importer but alleged to be claimant of goods - The importer & IEC holder is M/s. Sun Impex - Penalty under Section 114A is liable to be imposed on the person liable to pay duty or interest as determined u/s. 28 - In this case the differential customs duty has been paid by importer i.e. M/s. Sun Impex through its proprietor Mr. Ganesh Shankar Nirulkar - Penalty u/s. 114A is attracted only for the person who is liable to pay duty or interest under section 28 and not on anyone else - Therefore, imposition of penalty on appellant under Section 114A ibid is without authority of law - Appellant could have been held liable for penalty under some other provision of the Act but not under Section 114A as the language of said section is very clear and unambiguous: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-89-CESTAT-KOL
Mideast Integrated Steels Ltd Vs CCGST & Excise
CX - Appellant was issued an Audit Memo to pay the amount being service tax received during Financial Year 2007-2008 for having provided "Renting of Immovable Property Service" - SCN was issued for recovery of said purported in admissible input service credit alleged on aforesaid erroneous premises - Appellant had discharged the duty burden from their PLA Account and as such, there is no dispute about the same - With such payment of duty out of PLA, they have reversed the debit entry made by them in their Credit Account which was used for payment of duty earlier - Though there was no proposal in SCN to deny such re-credit, original Adjudicating Authority went ahead and even after accepting that duty was paid subsequently in cash, disallowed re-credit and confirmed the duty to that extent - Once the duty has been paid in cash, earlier payments made through Cenvat Account are liable to be re-credited in said Account and no objection that such recredit was not on the basis of any eligible document can be adopted by Revenue - Admittedly, it is not a case of availment of credit in ordinary course, but such re-credit was to neutralize subsequent payment of duty in cash - High Court of Madras in case of ICMC Corporation Limited 2014-TIOL-121-HC-MAD-CX held that the suo motu credit of Cenvat reversed earlier involved only an account entry reversal and in process, no outflow of funds from appellant and accordingly, filing of refund claim under Section 11B of Central Excise Act, 1944, is not required - Impugned orders cannot be sustained, same are set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-88-CESTAT-AHM
CCE & ST Vs Lakhani Desai Developers
CX - A search was conducted at the premises of assessee and it was noticed by department that they had constructed 166 flats in their project 'Atlantis' having 4 towers (A,B,C & D) and out of which 46 flats were booked/sold before issuance of completion certificate i.e. BUC and they had paid service tax on payment received, while remaining 120 flats were unsold/ remained unsold after issuance of BUC, where entire consideration/payment was received or to be received after receipt of completion certificate/BUC as a sales of goods/immovable property on payment of state sale Tax/VAT - A SCN was issued to assessee demanding Cenvat credit along with interest and proposing imposition of penalty - Commissioner (A) decided the subject disputed matter on the basis of judgment of M/s Alembic Ltd. 2019-TIOL-1545-HC-AHM-ST only and grievance of revenue is that departmental appeal is pending against the decisions of said order - In these circumstances, matter should be remanded to original adjudicating authority to decide the matter afresh on the basis of outcome of the departmental appeals filed before Supreme court of India: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
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